EFF/Bernstein Press Release

[John Gilmore <gnu@toad.com>]

	FEDERAL COURT DENIES GOVERNMENT'S MOTION TO DISMISS BERNSTEIN CASE, 
	            ACKNOWLEDGES SOURCE CODE AS SPEECH

April 17, 1996
				Electronic Frontier Foundation Contacts: 
				Shari Steele, Staff Counsel
				301/375-8856, ssteele@eff.org 
				Lori Fena, Executive Director
				415/436-9333, lori@eff.org

Denying the government's motion for dismissal in mathematician Daniel 
Bernstein's suit against the State Department, Judge Marilyn Patel in the 
Northern District of California ruled Monday that source code in 
Bernstein's cryptographic algorithm, "Snuffle," is speech that is 
protected from prior restraint by the First Amendment.

LANDMARK RULING
This is the first time a U.S. court has ruled that source code is speech 
under First Amendment analysis. Previously, courts have held that 
software is speech for copyright law only.

The decision states in part: 
"This court can find no meaningful difference between computer language, 
particularly high-level languages as defined above, and German or 
French....Like music and mathematical equations, computer language is 
just that, language, and it communicates information either to a computer 
or to those who can read it....Thus, even if Snuffle source code, which 
is easily compiled into object code for the computer to read and easily 
used for encryption, is essentially functional, that does not remove it 
from the realm of speech....For the purposes of First Amendment analysis, 
this court finds that source code is speech."

(The full text of the decision can be found at 
http://www.eff.org/pub/Legal/Cases/Bernstein_v_DoS/Legal/Decision_041596/)

Judge Patel's acknowledgment that source code enjoys Constitutional 
protection has implications that reach far beyond cases involving the 
export of cryptography. The decision holds importance to the future of 
secure electronic commerce and lays the groundwork needed to expand First 
Amendment protection to electronic communication.

Because of its far-reaching implications, the Bernstein case is being 
watched closely not only by privacy advocates, but by the entire computer 
industry, the export and cryptography communities and First Amendment 
advocates.

CASE WILL PROCEED
The decision allows Bernstein to continue with his lawsuit that the 
International Traffic in Arms Regulation (ITAR) acts as a prior restraint 
on speech and that the ITAR is overbroad and vague. 

EFF is very pleased with Judge Patel's ruling and believes that it bodes 
well for Bernstein's ultimate success in trial, which is now scheduled to 
proceed with the normal pre-trial and trial sequence of events.

The court drew an important distinction between the Bernstein case and 
other cases involving export controls on cryptography. The government has 
cited several cases involving the Export Administration Act as reasons 
why the Bernstein case should be dismissed. Judge Patel recognized that 
the Constitutional questions being raised by Bernstein differ 
significantly from the policy questions raised in the cases introduced by 
the government.


Judge Patel also ruled that Bernstein could bring his case even though 
the Arms Export Control Act specifically precludes judicial review, 
because what Bernstein is asking the court to review (i.e., the 
constitutionality of the statute and its regulations) was not what had 
been precluded (i.e., the government's determination in a particular 
instance whether or not something was exportable).  "With respect to 
constitutional questions, the judicial branch not only possesses the 
requisite expertise to adjudicate these issues, it is also the best and 
final interpreter of them."

CASE BACKGROUND
As part of her decision, Judge Patel determined that only the source code 
was at issue in the case, not Bernstein's academic paper describing the 
source code.  Bernstein tried to get the government to rule separately on 
the paper and the code back in 1993 by filing separate commodity 
jurisdiction requests.  The State Department merged the requests and 
rejected them all.  On June 29, 1995, after Bernstein and EFF filed suit, 
the government sent Bernstein a letter saying that the paper could be 
published and never had been forbidden.  While Judge Patel claimed that 
the issue of the paper now appeared to be moot, she commented, "It is 
disquieting than an item defendants now contend could not be subject to 
regulation was apparently categorized as a defense article and subject to 
licensing for nearly two years, and was only reclassified after plaintiff 
initiated this action."

THE ELECTRONIC FRONTIER FOUNDATION
EFF, a non-profit civil liberties organization working in the public 
interest to protect privacy, free expression, and access to online 
resources and information, is a primary sponsor of the Bernstein case. 
EFF helped to find Bernstein pro bono legal counsel, is a member of the 
Bernstein legal team, and organized amicus briefs from members of the 
academic community and computer industry to support this case.
				###